Kagan's Atlantic Crossing: Adversarial Legalism, Eurolegalism, and Cooperative Legalism

Francesca Bignami and R. Daniel Kelemen, Kagan's Atlantic Crossing: Adversarial Legalism, Eurolegalism, and Cooperative Legalism in European Regulatory Style, in Varieties of Legal Order: The Politics of Adversarial and Bureaucratic Legalism (Jeb Barnes & Thomas F. Burke eds., Routledge, 2017)

GWU Law School Public Law Research Paper No. 2017-66

GWU Legal Studies Research Paper No. 2017-66

28 Pages Posted: 29 Sep 2017  

Francesca Bignami

George Washington University - Law School

R. Daniel Kelemen

Rutgers, The State University of New Jersey - New Brunswick/Piscataway; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Date Written: 2017

Abstract

In this contribution to Varieties of Legal Order, a book inspired by Robert Kagan’s scholarship, we review the debate on the spread of American “adversarial legalism” to Europe. In the 1990s, Kagan developed the concept of adversarial legalism to capture the distinctive litigiousness of the American regulatory system, and asked whether it might take hold in Europe. In our research that followed, we put forward different answers. R. Daniel Kelemen concluded that a legal style akin to adversarial legalism—one which he eventually termed Eurolegalism—was in fact spreading across the European Union. Drawing on her case study of the data privacy field, Francesca Bignami argued that EU regulation was not evolving into adversarial legalism, but rather had come to rely more on agency enforcement and private-sector cooperation, a style she called “cooperative legalism.” The chapter links the discussion of our own work with other important contributions to the debate on European regulation. It concludes by underscoring the enduring importance of understanding the European regulatory style and by highlighting the issues on which future research will be crucial.

Keywords: comparative law, courts, administrative law

Suggested Citation

Bignami, Francesca and Kelemen, R. Daniel, Kagan's Atlantic Crossing: Adversarial Legalism, Eurolegalism, and Cooperative Legalism (2017). Francesca Bignami and R. Daniel Kelemen, Kagan's Atlantic Crossing: Adversarial Legalism, Eurolegalism, and Cooperative Legalism in European Regulatory Style, in Varieties of Legal Order: The Politics of Adversarial and Bureaucratic Legalism (Jeb Barnes & Thomas F. Burke eds., Routledge, 2017); GWU Law School Public Law Research Paper No. 2017-66; GWU Legal Studies Research Paper No. 2017-66. Available at SSRN: https://ssrn.com/abstract=3043768 or http://dx.doi.org/10.2139/ssrn.3043768

Francesca Bignami (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-2470 (Phone)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=14593

R. D. Kelemen

Rutgers, The State University of New Jersey - New Brunswick/Piscataway ( email )

89 George St.
New Brunswick, NJ 08901
United States

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

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